I told them it might fail

James Foster explains why you should be extremely careful about what treatment you agree to provide for your patients when there is a poor chance of long-term success. Warning them of the risk alone is not sufficient.

You cannot have completed your dental degree without developing some understanding of the concept of consent. Sadly the consent process is sometimes seen as a necessary tiresome hurdle that has to be overcome before we can get on with doing the dentistry. However, this misses the fact that the consent process - apart from being a legal and ethical requirement - is also an opportunity to generate patient trust which is the bedrock on which every professional relationship is based.

Establishing the basis of a claim

For a patient to be successful in a claim they need to demonstrate that there has been a breach of duty by the clinician that has caused them harm. If a recognised material risk arises during treatment, then many solicitors will look to further the claim on the basis that the patient was unaware of the potential risk and that the consent process was flawed from the outset. In other words, the patient's solicitor is saying 'had my client fully appreciated the potential risks involved in the treatment at the start, then they would not have agreed to it.'

It is not only lawyers who are challenging the consent process. We are also seeing an increase in the number of enquiries into the consent process when cases are investigated by the Governing Dental Council.

As a dentist, it is important that you should fully understand the steps to follow when obtaining consent as well as knowing how you can demonstrate that the patient was aware of all the details of their treatment when they agreed to it. You need to ensure that your records can always demonstrate this basic requirement.

Strong relationships

It is well recognised that the existence of a strong professional relationship between the patient and the clinician effectively diminishes the risk of complaints or claims from a patient should an adverse outcome develop or a mistake arise. It would therefore make sense for you to build a strong professional relationship with your patients.

When discussing treatment options with a patient, your dental nurse can help you by creating a brief précis of the discussion in the records as you are speaking to the patient. Not only will this reduce the risk of a challenge arising in the first place but it can significantly help you should a claim subsequently arise - particularly in the case of a claim based on consent.

Assertive patients

As a recently qualified dentist, there is often a desire to want to please your patients and you may be tempted to provide the treatment requested by the patient even if it goes against your clinical judgement. It is certainly much more difficult to stand your ground and refuse to provide the patient's preferred treatment option. But those who are tempted to ignore their better judgement by allowing the patient to insist upon their own choice of treatment, are likely to find that the same patient will come back to 'bite' them when the clinical outcome is not exactly what they had wished for.

It is a complete fallacy to believe that if a patient agrees to their own choice of treatment, and it subsequently fails, then the failure is wholly their own responsibility. This approach fails to address the question of whether or not the treatment was appropriate in the first instance.

The patient may have agreed to a particular treatment plan, however if a legal challenge arises, there will undoubtedly be scrutiny to establish whether or not the treatment was reasonable in the first instance. Was the treatment appropriate in the clinical circumstances and furthermore was it within the competency of the clinician to provide it.

Learning to say 'No'

One of the issues that can arise for a new graduate is that they will do their utmost to meet the patient's request and may compromise their own position by doing so. Learning to manage a patient and their expectations comes with experience; however there is no basis for thinking that if the patient wants a particular treatment, they can have it as long as they have given their consent.

Acting in the patient's best interests has to be the overarching concept and although it may seem difficult to refuse an assertive patient it is far better to grasp the nettle at the early stage than to fail heroically in an impossible clinical situation, particularly given the potential for patients to develop selective amnesia with regard to early discussions.

The patient declines

The converse situation can arise when a patient refuses to have treatment that has been recommended to them. If the clinician has not created an accurate set of records there is a risk that the patient's 'informed refusal' has not actually been noted. This can leave the clinician vulnerable because it could appear that the work which has been consciously refused was actually overlooked by the clinician at the time.

If a patient refuses a referral or refuses periodontal treatment then this should be clearly stated in the notes. Difficulties can arise if the patient challenges the clinician, perhaps even many years later, and the notes do not reflect the fact that the patient failed to pay heed to the appropriate clinical advice. We are back to the 'no records means no defence' situation.

Summary

If you find yourself in a similar position and experience difficulty in managing a particular patient be sure to discuss the matter with a more experienced colleague or speak to one of the 52 dento-legal advisers at Dental Protection.

James Foster has a background in general practice and had various roles with the Northern Deanery which included seven years as a VT adviser (latterly as a GPT scheme adviser), workforce adviser, dental tutor and a PCD tutor.He is now a full-time dento-legal adviser for Dental Protection and is the deputy lead for members in Australia. He also has a special responsibility for dental members at the start of their career.

Dental Protection has more than 50 dento-legal advisers to support you if you receive a complaint.Find out more